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463 U.S.

147
103 S.Ct. 2926
77 L.Ed.2d 535

EDWARD J. DeBARTOLO CORP., Petitioner


v.
NATIONAL LABOR RELATIONS BOARD et al.
No. 81-1985.
Argued March 22, 1983.
Decided June 24, 1983.

Syllabus
Section 8(b)(4) of the National Labor Relations Act prohibits secondary
boycotts, but its so-called "publicity proviso" exempts from the
prohibition publicity advising the public that a product is produced by an
employer with whom a union has a primary dispute and is distributed by
another employer. As a result of a wage dispute between respondent union
and a building contractor retained by a company to construct a department
store in a shopping center owned and operated by petitioner, the union
passed out handbills to consumers in the shopping center urging them not
to patronize any of the stores in the center until petitioner publicly
promised that all construction at the center would be done by contractors
who pay their employees fair wages and fringe benefits. Petitioner filed an
unfair labor practice charge with the National Labor Relations Board,
which held that the handbilling was exempted from the secondary boycott
prohibition of 8(b)(4) by the "publicity proviso" and dismissed the
complaint. The Board reasoned that there was a "symbiotic" relationship
between petitioner and its tenants, including the department store
company, and that they would derive a substantial benefit from the
"product" that the building contractor was constructing, namely, the new
store, the contractor's status as a producer bringing a total consumer
boycott of the shopping center within the "publicity proviso." The Court
of Appeals agreed, holding that the building contractor was a producer
and that petitioner and its tenants were distributors within the meaning of
the proviso.
Held: The handbilling does not come within the protection of the

"publicity proviso." Pp. 153-157.


(a) The only publicity exempted from the secondary boycott prohibition is
publicity intended to inform the public that the primary employer's
product is "distributed by" the secondary employer. Here, the Board's
analysis would almost strip the distribution requirement of any limiting
effect and diverts the inquiry away from the relationship between the
primary and secondary employers and toward the relationship between the
two secondary employers. It then tests that relationship by a standard so
generous that it would be satisfied by virtually any secondary employer
that a union might want consumers to boycott. Pp. 155-156.
(b) The handbills at issue did not merely call for a boycott of the
department store company's products; they also called for a boycott of the
products being sold by the company's cotenants. Neither petitioner nor
any of the cotenants had any business relationship with the building
contractor nor do they sell any product whose chain of production can
reasonably be said to include the contractor. Hence, there is no
justification for treating the products that the cotenants distribute to the
public as products produced by the contractor. Pp. 156-157.
662 F.2d 264 (4th Cir.1981), vacated and remanded.
Lawrence M. Cohen, Chicago, Ill., for petitioner.
Norton J. Come, Washington, D.C., for respondents.
Justice STEVENS delivered the opinion of the court.

As a result of a labor dispute between respondent union and the H.J. High
Construction Company (High), the union passed out handbills urging
consumers not to trade with a group of employers who had no business
relationship of any kind with High. The question presented is whether that
handbilling is exempted from the prohibition against secondary boycotts
contained in 8(b)(4)1 of the National Labor Relations Act, as amended, 29
U.S.C. 158(b)(4), by what is known as the "publicity proviso" to that
section.2

High is a general building contractor retained by the H.M. Wilson Company


(Wilson) to construct a department store in a shopping center in Tampa,
Florida. Petitioner, the Edward J. DeBartolo Company (DeBartolo) owns and
operates the center. Most of the 85 tenants in the mall signed a standard lease

with DeBartolo providing for a minimum rent (which increases whenever a


large new department store opens for business) plus a percentage of gross sales,
and requiring the tenant to pay a proportionate share of the costs of maintaining
the mall's common areas, to pay dues to a merchants' association, and to take
part in four joint advertising brochures. Wilson signed a slightly different land
lease agreement, but he also promised to pay dues to the merchants' association
and to share in the costs of maintaining the common areas. Under the terms of
Wilson's lease, neither DeBartolo nor any of the other tenants had any right to
control the manner in which High discharged its contractual obligation to
Wilson.
3

The union conducted its handbilling at all four entrances to the shopping center
for about three weeks, while the new Wilson store was under construction.
Without identifying High by name, the handbill stated that the contractors
building Wilson's Department Store were paying substandard wages, and asked
the readers not to patronize any of the stores in the mall until DeBartolo
publicly promised that all construction at the mall would be done by contractors
who pay their employees fair wages and fringe benefits.3 The handbilling was
conducted in an orderly manner, and was not accompanied by any picketing or
patrolling. DeBartolo advised the union that it would not oppose this
handbilling if the union modified its message to make clear that the dispute did
not involve DeBar olo or any of Wilson's co-tenants, and if it limited its
activities to the immediate vicinity of Wilson's. When the union persisted in
distributing handbills to all patrons of the shopping center, DeBartolo filed a
trespass action in the state court and an unfair labor practice charge with the
National Labor Relations Board. The Board's General Counsel issued a
complaint.

The complaint recited the dispute between the union and High, and noted the
absence of any labor dispute between the union and DeBartolo, Wilson, or any
of the other tenants of the East Lake Mall. The complaint then alleged that in
furtherance of its primary dispute with High, the union "has threatened, coerced
or restrained, and is threatening, coercing or restraining, various tenant
Employers who are engaged in business at East Lake Square Mall, and who
lease space from DeBartolo in East Lake Square Mall, by handbilling the
general public not to do business with the above-described tenant Employers. . .
." Complaint 8(a). The complaint alleged that the object of the handbilling
"was and is, to force or require the aforesaid tenant Employers in East Lake
Square Mall . . . to cease using, handling, transporting, or otherwise dealing in
products and/or services of, and to cease doing business with DeBartolo, in
order to force DeBartolo and/or Wilson's not to do business with High."
Complaint 8(b).

After the union filed its answer, the parties stipulated to the relevant facts and
submitted the matter to the Board for decision. Without deciding whether the
handbilling constituted a form of "coercion" or "restraint" proscribed by 8(b)
(4), the Board concluded that it was exempted from the Act by the "publicity
proviso" and dismissed the complaint. Florida Gulf Coast Building Trades
Council, AFL-CIO (Edward J. DeBartolo Corp.), 252 N.L.R.B. 702 (1980).
The Board reasoned that there was a "symbiotic" relationship between
DeBartolo and its tenants, including Wilson, and that they all would derive a
substantial benefit from the "product" that High was constructing, namely
Wilson's new store. The Board did not expressly state that DeBartolo and the
other tenants could be said to be distributors of that product, but concluded that
High's status as a producer brought a total consumer boycott of the shopping
center within the publicity proviso.4

The Court of Appeals agreed. Edward J. DeBartolo Corp. v. NLRB, 662 F.2d
264 (CA4 1981). It observed that our decision in NLRB v. Servette, Inc., 377
U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964), had rejected a narrow reading
of the proviso and that the Board had consistently construed it in an expansive
manner. Finding the Board's interpretation consistent with the rationale of the
National Labor Relations Act, it held that High was a producer and that
DeBartolo and the other tenants were distributors within the meaning of the
proviso. This holding reflected the court's belief that in response to the union's
consumer handbilling, DeBartolo and the storekeepers would be able "in turn,
to apply pressure on Wilson's and High." 662 F.2d, at 271. Because the
decision conflicts with that of the Court of Appeals for the Eighth Circuit in
Pet, Inc. v. NLRB, 641 F.2d 545 (CA8 1981), we granted certiorari. --- U.S. ----,
103 S.Ct. 205, 74 L.Ed.2d 164 (1982).5

The Board and the union correctly point out that DeBartolo cannot obtain relief
in this proceeding unless it prevails on three separate issues. It must prove that
the union did "threaten, coerce, or restrain" a person engaged in commerce,
with the object of "forcing or requiring" someone to cease doing business with
someone elsethat is to say, it must prove a violation of 8(b)(4)(ii)(B). It
must also overcome both the union's defense based on the publicity proviso and
the union's claim that its conduct was protected by the First Amendment.
Neither the Board nor the Court of Appeals considered whether the handbilling
in this case was covered by 8(b)(4)(ii)(B) or protected by the First
Amendment, because both found that it fell within the proviso. We therefore
limit our attention to that issue.

The publicity proviso applies to communications "other than picketing," that


are "truthful," and that do not produce either an interference with deliveries or a

work stoppage by employees of any person other than the firm engaged in the
primary labor dispute. The Board and the Court of Appeals found that these
three conditions were met, and these findings are not now challenged. The only
question is whether the handbilling "advis[ed] the public . . . that a product or
products are being produced by an employer with whom the labor organization
has a primary dispute and are distributed by another employer." The parties
agree that this language limits the proviso's protection to publicity that is
designed to create consumer pressure on secondary employers who distribute
the primary employer's products. They do not agree, however, on what
constitutes a producer-distributor relationship.
9

We have analyzed the producer-distributor requirement in only one case, NLRB


v. Servette, Inc., 377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964). Servette
involved a primary dispute between a union and a wholesale distributor of
candy and certain other specialty items sold to the public by supermarkets. The
union passed out handbills in front of some of the chain stores urging
consumers not to buy any products purchased by the store from Servette. We
held that even though Servette did not actually manufacture the items that it
distributed, it should still be regarded as a "producer" within the meaning of the
proviso. We thus concluded that the handbills advised the public that the
products were produced by an employer with whom the union had a primary
dispute (Servette) and were being distributed by another employer (the
supermarket).

10

In reaching that conclusion, we looked to the legislative history of the LaborManagement Reporting and Disclosure Act of 1959, Pub.L. 86-257, 73 Stat.
519 et seq., which had simultaneously strengthened the secondary boycott
prohibition and added the publicity proviso. We noted that a principal source of
congressional concern had been the secondary boycott activities of the
Teamsters Union, which for the most part represented employees of motor
carriers who did not "produce" goods in the technical sense of the verb. The
Teamsters' activities were plainly intended to be covered by the new
prohibitions in 8(b)(4)(ii)(B), and we declined to hold that Congress, in using
the word "produced," had intended to exclude the Teamsters entirely from the
offsetting protections of the proviso. "There is nothing in the legislative history
which suggests that the protection of the proviso was intended to be any
narrower in coverage than the prohibition to which it is an exception, and we
see no basis for attributing such an incongruous purpose to Congress." 377
U.S., at 55, 84 S.Ct., at 1104.

11

The focus of the analysis in Servette was on the meaning of the term
"producer." In this case, DeBartolo is willing to concede that Wilson distributes

products that are "produced" by High within the meaning of the statute. This
would mean that construction workers, like truck drivers, may perform services
that are essential to the production and distribution of consumer goods. We may
therefore assume in this case that High, the primary employer, is a producer
within the meaning of the proviso.6 Indeed, we may assume here that the
proviso's "coverage"the types of primary disputes it allows to be publicized
is broad enough to include almost any primary dispute that might result in
prohibited secondary activity. 7
12

We reject, however, the Board's interpretation of the extent of the secondary


activity that the proviso permits. The only publicity exempted from the
prohibition is publicity intended to inform the public that the primary
employer's product is "distributed by" the secondary employer. We are
persuaded that Congress included that requirement to reflect the concern that
motivates all of 8(b)(4): "shielding . . . unoffending employers and others
from pressures in controversies not their own." N.L.R.B. v. Denver Building and
Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed.
1284 (1951).8 In this case, the Board did not find that any product produced by
High was being distributed by DeBartolo or any of Wilson's cotenants. Instead,
it relied on the theory that there was a symbiotic relationship between them and
Wilson, and that DeBartolo and Wilson's cotenants would derive substantial
benefit from High's work. That form of analysis would almost strip the
distribution requirement of its limiting effect. It diverts the inquiry away from
the relationship between the primary and secondary employers and toward the
relationship between two secondary employers. It then tests that relationship by
a standard so generous that it will be satisfied by virtually any secondary
employer that a union might want consumers to boycott. Yet if Congress had
intended all peaceful, truthful handbilling that informs the public of a primary
dispute to fall within the proviso, the statute would not have contained a
distribution requirement.9

13

In this case, DeBartolo is willing to assume that Wilson distributes products


that are "produced" by High within the meaning of the statute. Wilson
contracted with High to receive the construction services that are the subject of
the primary dispute, and the cost of those services will presumably be reflected
in the prices of the products sold by Wilson. But the handbills at issue in this
case did not merely call for a boycott of Wilson's products; they also called for
a boycott of the products being sold by Wilson's cotenants. Neither DeBartolo
nor any of the cotenants has any business relationship with High. Nor do they
sell any products whose chain of production can reasonably be said to include
High. Since there is no justification for treating the products that the cotenants
distribute to the public as products produced by High, the Board erred in

concluding that the handbills came within the protection of the publicity
proviso.
14

Stressing the fact that this case arises out of an entirely peaceful and orderly
distribution of a written message, rather than picketing, the union argues that its
handbilling is a form of speech protected by the First Amendment. The Board,
without completely endorsing the union's constitutional argument, contends
that it has sufficient force to invoke the Court's prudential policy of construing
acts of Congress so as to avoid the unnecessary decision of serious
constitutional questions. See NLRB v. Catholic Bishop, 440 U.S. 490, 500-501,
99 S.Ct. 1313, 1318-1319, 59 L.Ed.2d 533 (1979). That doctrine, however,
serves only to authorize the construction of statute in a manner that is "fairly
possible." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598
(1932). We do not believe that the Board's expansive reading of the proviso
meets that standard.10

15

Nevertheless, we do not reach the constitutional issue in this case. For, as we


noted at the outset, the Board has not yet decided whether the handbilling in
this case was proscribed by the Act. It rested its decision entirely on the
publicity proviso and never considered whether, apart from that proviso, the
union's conduct fell within the terms of 8(b)(4)(ii)(B).11 Until the statutory
question is decided, review of the constitutional issue is premature.

16

The judgment of the Court of Appeals is vacated and the case is remanded for
further proceedings consistent with this opinion.

17

It is so ordered.

That section makes it an unfair labor practice for a labor organization or its
agents
"(ii) to threaten, coerce, or restrain any person engaged in commerce or in an
industry affecting commerce, where in either case an object thereof is:
"(B) forcing or requiring any person to cease using, selling, handling,
transporting, or otherwise dealing in the products of any other producer,
processor or manufacturer, or to cease doing business with any other person. . .
." 61 Stat. 140, as amended, 29 U.S.C. 158(b)(4).

That proviso reads as follows:

"Provided further, That for the purposes of this paragraph (4) only, nothing
contained in such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public, including
consumers and members of a labor organization, that a product or products are
produced by an employer with whom the labor organization has a primary
dispute and are distributed by another employer, as long as such publicity does
not have an effect of inducing any individual employed by any person other
than the primary employer in the course of his employment to refuse to pick up,
deliver, or transport any goods, or not to perform any services, at the
establishment of the employer engaged in such distribution." 73 Stat. 543, 29
U.S.C. 158(b)(4).
3

The handbills read:


PLEASE DON'T SHOP AT EAST LAKE SQUARE MALL PLEASE
The FLA. GULF COAST BUILDING TRADES COUNCIL, AFL-CIO is
requesting that you do not shop at the stores in the East Lake Square Mall
because of The Mall ownership's contribution to substandard wages.
The Wilson's Department Store under construction on these premises is being
built by contractors who pay substandard wages and fringe benefits. In the past,
the Mall's owner, The Edward J. DeBartolo Corporation, has supported labor
and our local economy by insuring that the Mall and its stores be built by
contractors who pay fair wages and fringe benefits. Now, however, and for no
apparent reason, the Mall owners have taken a giant step backwards by
permitting our standards to be torn down. The payment of substandard wages
not only diminishes the working person's ability to purchase with earned, rather
than borrowed, dollars, but it also undercuts the wage standard of the entire
community. Since low construction wages at this time of inflation means
decreased purchasing power, do the owners of East Lake Mall intend to
compensate for the decreased purchasing power of workers of the community
by encouraging the stores in East Lake Mall to cut their prices and lower their
profits?
CUT-RATE WAGES ARE NOT FAIR UNLESS MERCHANDISE PRICES
ARE ALSO CUT-RATE.
We ask for you support in our protest against substandard wages. Please do not
patronize the stores in the East Lake Square Mall until the Mall's owner
publicly promises that all construction at the Mall will be done using
contractors who pay their employees fair wages and fringe benefits. IF YOU
MUST ENTER THE MALL TO DO BUSINESS, please express to the store
managers your concern over substandard wages and your support of our efforts.

We are appealing only to the publicthe consumer. We are not seeking to


induce any person to cease work or to refuse to make deliveries.
4

The Board concluded:


"In sum, we find that the mutual obligations between the parties and the
benefits derived from participation in the mall enterprise reflect the symbiotic
nature of the relationship between DeBartolo and its tenants, not unlike the
relationship between the operations of a diversified corporation. High's
contribution to this enterprise is as an employer which applies its labor to a
product, i.e., the Wilson's store, from which DeBartolo and its tenants will
derive substantial benefit. Consequently, we find as a result of its relationship
with Wilson's and the shopping center enterprise that High applies capital,
enterprise, and service to that enterprise, and thus that it is a 'producer' in the
sense that that term is used in the publicity proviso as interpreted by the
Supreme Court in Servette, [377 U.S. 46, 84 S.Ct. 1098, 12 L.Ed.2d 121 (1964)
], and by this Board in Pet, [244 N.L.R.B. 96 (1979) ].
"Having found High to be a producer within the meaning of Section 8(b)(4), we
find that Respondent's handbilling urging a total consumer boycott of
DeBartolo and its tenants other than Wilson's is protected by the publicity
proviso of that section of the Act." 252 N.L.R.B., at 705.

DeBartolo was successful in its trespass action in the state court. The
handbilling at the East Lake Mall was enjoined and ceased on January 4, 1980.
The parties agree, however, that the case is not moot. DeBartolo operates a
number of shopping centers at various locations throughout the United States
and the union maintains that it has a right to engage in comparable handbilling
in the future if a similar problem should again arise. That possibility, together
with the fact that a cease and desist order would protect DeBartolo from a
recurrence in the future, provides a sufficient basis for concluding that the case
is not moot.

Cf. Local 712, IBEW (Goldendorm Foods), 134 N.L.R.B. 812 (1961) (electrical
and refrigeration work); Plumbers & Pipefitters, Local 142 (Shop-Rite Foods),
133 N.L.R.B. 307 (1961) (refrigeration work).

As the Board stated in International Brotherhood of Teamsters, Local 537


(Lohman Sales Co.), 132 N.L.R.B. 901, 907 (1961), "there is no suggestion
either in the statute itself or in the legi lative history that Congress intended the
words 'product' and 'produced' to be words of special limitation."

See also International Longshoremen's Association, AFL-CIO v. Allied


International, Inc., 456 U.S. 212, 223, 102 S.Ct. 1656, 1663, 72 L.Ed.2d 21

(1982); Carpenters v. NLRB, 357 U.S. 93, 100, 78 S.Ct. 1011, 1016, 2 L.Ed.2d
1186 (1958); H.Rep. No. 245, 80th Cong., 1st Sess. 24, 1 NLRB, Legislative
History of the Labor Management Relations Act of 1947, at 315 (1948).
9

The Board concedes in its brief that Congress intended this language to restrict
the scope of the proviso. It acknowledges that the product must be "in some
manner distributed by the employers at whose customers the nonpicketing
publicity is immediately directed." Brief for the NLRB 9.

10

Concededly, "[t]he proviso was the outgrowth of a profound Senate concern


that the unions' freedom to appeal to the public for support of their case be
adequately safeguarded." Servette, supra, 377 U.S., at 55, 84 S.Ct., at 1104.
Indeed, several legislators referred to the First Amendment explicitly during the
debates. E.g., 2 NLRB, Legislative History of the Labor-Management
Reporting and Disclosure Act of 1959, at 1037 (Sen. Humphrey); id., at 1722
(Rep. Udall). That fact, however, merely confirms in this case the presumption
that underlies Catholic Bishop and Crowell: when Congress legislates in a
fashion that restricts communicative activity, it expects the statutory language
to be construed narrowly. See Catholic Bishop, supra, 440 U.S., at 507, 99
S.Ct., at 1322. It does not, however, expect the statutory language to be
deprived of substantial practical effect.

11

Cf. NLRB v. Retail Store Employees, Local 1001, 447 U.S. 607, 100 S.Ct. 2372,
65 L.Ed.2d 377 (1980) (picket line advocating boycott of substantial portion of
secondary employer's business is proscribed); NLRB v. Fruit and Vegetable
Packers and Warehousemen, Local 706 ("Tree Fruits"), 377 U.S. 58, 84 S.Ct.
1063, 12 L.Ed.2d 129 (1964) (picket line advocating boycott of insubstantial
portion of secondary employer's business is not proscribed).

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